Karnataka High Court
Motilal S/O. Sakrappa Chavan And Ors vs The State Of Karnataka And Anr on 1 June, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200096/2016
Between:
1. Motilal S/o Sakrappa Chavan
Age: 59 years, Occ: Agriculture
2. Janakibai W/o Motilal Chavan
Age: 52 years, Occ: Household work
3. Bhuvaneshwar @ Sharada
W/o Mangalappa @ Muttanna Naik
Age: 32 years, Occ: Household work
4. Neelamma D/o Mansingh Naik
Age: 30 years, Occ: Household work
5. Srikant S/o Mansingh Naik
Age: 36 years, Occ: Agriculture
6. Akkamma W/o Srikant Naik
Age: 29 years, Occ: Household work
7. Annappa S/o Mansingh Naik
Age: 49 years, Occ: Agriculture
8. Somibai S/o Annappa Naik
Age: 42 years, Occ: Household work
9. Lakshmibai W/o Lakshman Naik
Age: 46 years, Occ: Household work
2
10. Govind S/o Lakshman Naik
Age: 29 years, Occ: Agriculture
11. Shantabai W/o Dhanajay Chavan
Age: 54 years, Occ: Household work
All the petitioners are R/o Nebgeri Tanda
Tq: Muddebihal, Dist: Vijaypur
... Petitioners
(By Sri R.S. Lagali, Advocate)
And:
1. The State of Karnataka
Rep. by the PSI
Muddebihal Police Station
2. Smt. Kavita W/o Khemu Chavan
Age: 30 years, Occu: Household work
R/o Nebgeri village, Tq: Muddebihal
Dist: Vijaypur
... Respondents
(By Sri Maqbool Ahmed HCGP for R1;
Sri Babu H. Metagudda, Adv., for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to allow the Criminal Petition and thereby
quash the order of taking cognizance and issue of process
dated 20.10.2015 in C.C.No.71/2015 (arising out of
Muddebihal PS Crime No.MAG 238/2011) for the offences
punishable U/S 143, 147, 148, 323, 324, 341, 504, 506
R/W Sec. 149 of IPC by the Senior Civil Judge & JMFC,
Muddebihal, against the petitioners.
This petition coming on for admission this day, the
Court made the following:-
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ORDER
This petition is filed by the petitioners/accused Nos.1, 2, 4, 6, 7, 8, 11, 12, 15, 16, 20 under Section 482 of Cr.P.C., praying to quash the order of taking the cognizance and issue of process dated 20.10.2015 in C.C. No.71/2015 of Senior Civil Judge and JMFC, Meddebihal, for the offences punishable under Sections 143, 147, 148, 323, 324, 341, 504, 506 R/w Section 149 of IPC.
2. Brief facts of the case are that, the petitioners and respondent No.2 - complainant are the relatives. On 17.11.2011 at about 6.30 a.m., when the respondent-complainant was passing in front of the house of petitioner No.1, at that time the accused persons by constituting an unlawful assembly by holding deadly weapons stopped her by surrounding and abused and questioned her as to why her husband and her younger brother-in-law were not giving his 4 share in the property in spite of petitioner No.1 approaching the Court and also supporting one Lakshman, who was animically disposed towards petitioner No.1. It is the further case of the complainant that the petitioners have quarreled abused them and assaulted them with stick and stones and when they tried to file the complaint before the police, they did not respond. As such, the private complaint came to be filed before the Court and the said complaint was referred under Section 156(3) of Cr.P.C. to the jurisdictional police. The jurisdictional police after investigation filed a 'B' report. After filing of the 'B' report, since the 'B' report was not accepted and notice was issued to the complainant, she filed a protest petition dated 26.09.2012 and thereafter recording the sworn statement of the complainant and another witnesses i.e., C.Ws.1 and 2, the learned Senior Civil Judge and JMFC, Muddebihal by order dated 20.10.2015, took the cognizance against the petitioners 5 and so far as other accused are concerned, the complaint was dismissed. Being aggrieved by the said order, the petitioners are before this Court.
3. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State and also the learned counsel for respondent No.2- complainant.
4. The main grounds urged by the learned counsel for the petitioners are that, the petitioners have not committed any offence. The learned Magistrate has not applied his mind to the 'B' report filed by the respondent-police. It is further contended that the protest petition filed by the complainant is not satisfying the ingredients of the complaint and as such the said cognizance taken by the learned Magistrate is not sustainable in law. In order to substantiate his contention, he relied upon a decision of the Apex Court 6 in the case of B. Chandrika vs. Santhosh and Anr. reported in 2014 SAR (Criminal) 75. It is further contended that the protest petition do not make out any offence as on plain reading of the said petition. It is further contended that the Magistrate ought not to have taken the cognizance as contemplated under Section 200 of Cr.P.C. Further, it is contended that the learned Magistrate has to look into the contents of the 'B' report in order to consider the material on record to ascertain whether it is a fit case to take cognizance and proceed against the petitioners. It is further contended that the complaint is not accompanied along with the affidavit and in view of the said decision of the Apex Court, the said complaint is not sustainable in law. On these grounds, he prays for allowing the petition by quashing the entire proceedings.
5. On the contrary, the learned High Court Government Pleader appearing for respondent No.1- 7 State by supporting the order of the learned Magistrate would contend that, the learned Magistrate after considering the complaint and sworn statement recorded by him and after applying his mind, as there is ample material as against the petitioners has rightly taken the cognizance as against the petitioners. There is no irregularity or illegality in the impugned order. As such, the petition is liable to be dismissed.
6. Learned counsel appearing on behalf of respondent No.2 would also contend that, the contention of the learned counsel for the petitioners that, the protest petition filed by the complainant does not contain the ingredients of the complaint before the Magistrate is two technical aspects. He would also contend that, the complaint, which has been filed earlier by the complainant contains all the ingredients of the offence and the said complaint is considered to be part and parcel of the proceedings. After considering 8 the said aspect and after recording the sworn statement, the learned Magistrate has rightly taken the cognizance against the petitioners. There is a prima facie case made out against the petitioners. As such, the petition is liable to be dismissed.
7. I have gone through the submissions made by the learned counsel for the petitioners and the learned counsel for respondents.
8. Learned counsel for the petitioners has relied upon the decision of the Apex Court in the case of B. Chandrika vs. Santhosh and Anr. cited supra, wherein at para 6, the Apex Court has held as under:
"6. The power of the Magistrate to take cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after accepting the final report cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before 9 Magistrate takes cognizance under Section 190(1)(a) Cr.P.C."
9. By going through the above decision, it makes it crystal clear that the protest petition or the protest application shall contain the ingredients of the offence alleged, so as to constitute the said protest petition as a complaint under Section 2(d) of Cr.P.C. But, as could be seen from the records, there is no dispute with regard to the fact that the earlier complaint contains all the ingredients of the offence which have been constitute and referred to under Section 156(3) of Cr.P.C.
10. Whenever the complaint has been filed and if it is referred under Section 156(3) of Cr.P.C. and a 'B' report was submitted by the police, under such circumstances, what will be the next procedure which has to be laid down by the learned Magistrate has been observed in the case of H.S. Bains Vs. The State (Union 10 Territory of Chandigarh). Wherein, the Apex Court has held as under:
"A Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;(3) he may take cognizance of the offence under Section 190 (1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."
(emphasis supplied)
11. By going through the above decision, it clarifies the situation as to what the learned Magistrate has to do. Third part of the above said judgment clearly 11 disclose that even in the absence of any protest petition, once opportunity is given to the complainant to say whether he would likely to continue with the complaint or whether he is satisfied with the 'B' report submitted by the police, the Court can pass appropriate order. If the complainant does not want to proceed with the complaint, the Court while accepting 'B' report can close the case. When an opportunity is given to the complainant to contest the 'B' report and when the original complaint is very much in existence before the learned Magistrate, it is the bounden duty of the learned Magistrate once again to look into the contents of the complaint to find out whether the allegation made in the complaint constitute any penal offences for the time being in force or whether an opportunity should be given to the complainant to furnish his sworn statement and to examine his witnesses and thereafter, the learned Magistrate has to pass appropriate order under Section 203 or 204 of Cr.P.C. In order to provide an 12 opportunity to the complainant, the Court shall go through the contents of the complaint, it must take cognizance and then proceed to record the sworn statement of the complainant and his witnesses to pass appropriate orders under Sections 203 or 204 of Cr.P.C., either by dismissing the complaint or issuing the process against the accused.
12. In the case on hand, the learned Magistrate on the protest petition has taken the cognizance and thereafter he has examined the complainant as C.W.1 and one witness as C.W.2 and after considering the evidence and the complaint, he has passed the impugned order. Even though in the decision in the case of B. Chandrika vs. Santhosh and Anr. cited supra at para 6, it is specifically stated that, the protest petition has to satisfy the ingredients of complaint before the Magistrate takes the cognizance under Section 190(1)(a) of Cr.P.C., but when the complaint is 13 already there before the Court and it is considered to be part and parcel of the proceedings, under such circumstances, it can be looked into by the Court for either accepting the 'B' report or for rejecting. Be that as it may. By close reading of the decision of the Apex Court, it is clear that Magistrate can take cognizance either on the complaint or on protest petition on same or similar allegation. In that light, the contention of the learned counsel for the petitioners is not correct. Be that as it may. When the Magistrate has already recorded the sworn statement of the complainant and the witnesses and after application of mind has taken the cognizance, under such circumstances, the petitioners will be having an opportunity under the subsequent provisions of Cr.P.C. to cross-examine the said witness and even they can also ask for discharge if the ingredients are not going to be satisfied. Under such circumstances, the contention of the learned counsel for 14 the petitioners does not appears to be acceptable in law and the same is rejected.
Keeping in view the above said facts and circumstances, the petition stands dismissed with a liberty to the petitioners to file an appropriate application before the learned Senior Civil Judge.
Sd/-
JUDGE LG Ct: RRJ